Waivers and Releases Do Not Eliminate Liability for Gross Negligence: Ask the Injury Lawyer

Tennessee Law on Contracting Away Liability

Chances are you’ve signed a Waiver or Release of Liability. Maybe you were going whitewater rafting or visited an indoor trampoline or “bouncy house” park. Businesses providing recreational activities generally require you to sign a form with lots of fine print before you can participate. These forms generally absolve the business of liability if you get hurt. Is that legal? Yes. But there’s one thing to remember: In Tennessee, a person or business cannot contract away liability for “gross negligence.” That’s why you need to consult with a personal injury lawyer if you are injured, but someone tells you they’re not responsible because you signed a Release or Waiver.

Tennessee law allows people to enter into contracts that say that ABC will not be liable and that XYZ is “assuming the risk,” including the risk that ABC might commit negligence. However, the law says that such a contract will not protect ABC if ABC is guilty of gross negligence. Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App.1990).

What is Gross Negligence?

What is gross negligence and how is it different from regular negligence? Regular negligence is the failure to use ordinary or reasonable care. Gross negligence involves a higher degree of “bad” conduct and callous indifference to consequences. That’s why Tennessee law won’t allow people to contract away liability for gross negligence. However, it’s harder to prove that someone committed gross negligence. You have to show:

The person committed ordinary negligence, and

The person acted “with utter unconcern for the safety of others, or … with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied . . .” Leatherwood Wadley, 121 S.W.3d 682, 693–94 (Tenn. Ct. App.2003).

Consult with an Injury Lawyer

If you are injured or hurt while participating in a recreational activity, you should consult with a personal injury lawyer. Don’t automatically assume that you can’t recover because you signed a Release or Waiver. A personal injury lawyer can examine the language of any form you signed and can advise you whether you might have a claim.